An open letter from government attorneys questions the legal cover for arms transfers to Israel.
Originally published in The Intercept.
IN A MESSAGE to Attorney General Merrick Garland and other senior officials this week, federal government attorneys invoked British abolitionist William Wilberforce: “You may choose to look the other way, but you can never say again that you did not know.”
The letter, drafted by unnamed legal and policy staff at more than two dozen federal agencies, argues that the U.S. is violating domestic and international law by providing a steady stream of weapons to Israel despite evidence of war crimes in Gaza. Drawing comparisons to the infamous “torture memos,” which were drafted by government lawyers to provide cover to CIA waterboarding and other tactics, the letter reminded fellow attorneys of their binding duty to follow the law over political priorities.
Multiple provisions in U.S. law restrict the sale or provision of weapons to other countries, including the federal Arms Export Control Act, the Foreign Assistance Act, and the Leahy Law. The open letter draws on evidence from Human Rights Watch, Amnesty International, and other watchdogs to argue that continuing to provide weapons to Israel blatantly violates these laws, in addition to international treaties.
“There is strong evidence that American weapons are being used to commit a genocide and war crimes against the Palestinian people in Gaza,” reads the letter sent to the Biden administration on Monday. It was addressed to all attorneys at the White House, Justice Department, State Department, Defense Department, and the U.S. Agency for International Development.
“To the extent that you have been involved in these decisions or asked to provide legal analyses on the potential violations, we ask that you render candid advice.”
Attorneys and legal staff from departments including Justice, Homeland Security and Labor, among other agencies, drafted the letter. They did not include their names. In interviews, four of the letter’s organizers — who spoke on the condition of anonymity — told The Intercept that they feared reprisal.
“There’s a fear of retaliation and marginalization at speaking out over Gaza,” said a DOJ attorney who helped draft the letter and spread the word among his colleagues.
“There is an underbelly of the U.S. government who have been advocating in professional and personal roles to change the policy on Gaza,” said a DHS attorney, who has worked in the federal government for more than a decade. “The dissent is not just within the State Department,” the attorney said, referring to a string of recent State Department officials who have publicly resigned over Gaza.
Those who signed the letter — which was first reported by Politico — see it as a way to leverage their familiarity with the federal government machinery to bring about change.
“It’s not kids fresh out of college drafting this,” the DHS attorney said.
Their letter was timed to the Biden administration’s deadline to report to Congress on whether Israel is, in fact, violating international law in Gaza using U.S.-supplied weapons. On Wednesday, the administration missed that deadline but said the report would be finalized in the coming days.
In tone, the 24-page, heavily footnoted letter is no screed. A Justice Department policy staffer said they chose a dispassionate style to force a response from Garland and other senior administration lawyers.
“The goal of this is to put people on the record: Do they agree with this analysis? Do they believe the U.S. is not following its own laws and policies?” the DOJ staffer said.
“I’m hoping this adds to the groundswell of actions and demands for reevaluation of the administration’s positions,” said the DOJ attorney, adding that the nationwide campus protests, in particular, spurred some of the federal employees to join the letter.
A State Department staffer with more than two decades of policy experience, including in foreign assistance in the Middle East, hopes the letter might embolden the rank-and-file attorneys who are tasked with drafting the overdue report and similar analysis about the U.S. government’s legal obligations when it comes to Israel and Gaza.
“We know the job you have in front of you, so here’s the analysis we think lawyers should be doing,” the State Department staffer said. “What is happening here is so off-the-charts egregious that there is no other reading of the law: We have to cease weapons transfers to Israel.”
The letter also calls on Garland to investigate the thousands of U.S. citizens currently serving in the Israel Defense Forces for potential war crimes. A spokesperson for the Justice Department confirmed that the letter was received but declined to comment further. A Defense Department spokesperson referred questions to the White House.
Shawn Musgrave is a media law attorney and reporter based in New York. As counsel to The Intercept, Shawn brings considerable experience in government transparency, including the federal Freedom of Information Act, state public records laws, and court access. Prior to joining The Intercept, Shawn worked at the Reporters Committee for Freedom of the Press, the Center for Investigative Reporting, and MuckRock. His reporting has been published in Politico, The Verge, Vice, Reason, and the Boston Globe, among other outlets.
Afeni is a community organizer and writer who is co-authoring an article soon to appear in Rolling Stone about FBI surveillance of Aretha Franklin. Afeni is joining us from Washington DC.
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